A few years ago, I got into an argument with an expert on military operations. I had written a white paper proposing the creation of a national-security court for terrorism cases. In the paper I criticized the trend to “judicialize” warfare, arguing that, in our system, judgments about the detention and treatment of alien enemy combatants are the preserve of the political branches, not the politically unaccountable courts. It was not my overall thesis to which the military expert took exception. The point of contention had to do with the incentives the legal system creates for soldiers.
I contended — and still contend — that the leftists who were pushing for judicial intrusion into the capture, detention, and interrogation of enemy operatives were subverting the human-rights agenda they purport to serve. There are many scenarios in which our forces are in a position either to kill or to capture the enemy, situations in which both are valid options under the laws of war. In a kill-or-capture situation, capture is the more merciful option. From an intelligence perspective, it may also be the more advantageous. The underlying objective of international humanitarian law is to civilize warfare. Yet, I posited, by freighting capture with judicial second-guessing, rather than leaving the matter to the sound discretion of our professional warfighters, the Left was virtually guaranteeing that more combatants would be killed. As Justice Clarence Thomas has observed, a Hellfire missile targeted at a jihadist who has not been given notice or an opportunity to be heard is an extremely prejudicial termination of his due-process rights.
The military expert took exception to this assertion. Our troops, he countered, were the most disciplined military force in history. They are trained to follow orders, not to act on their subjective sense of what is in their personal interests. I do not have a military background, so I was loath to argue, though it still seems to me that many acts of extraordinary valor stem from the soldier’s split-second battlefield decisions, taken in the absence of orders. But even conceding the expert’s point for the sake of argument, there remains the matter of the superior who gives orders to the combat soldier. Surely his incentives matter, no?
Clearly, they do. And the Washington Post’s report that the Obama administration is routinely ordering kills in the capture-or-kill situation must make us wonder what incentives are at work. The story brought the administration some criticism from proponents of aggressive intelligence gathering, who emphasize the lost opportunity represented by a kill when a capture would result in interrogation and the acquisition of more information, enabling our forces to break up more cells and thwart more terror plots.
I am firmly in the get-the-intelligence camp. Yet, I’m inclined to cut the administration some slack on this one. During the 2008 campaign, I thought candidate Obama had a much stronger position on fighting al-Qaeda in Pakistan than did his Republican opponent. Senator Obama promised that if Pakistan did not clean up its own mess in the northwest border region, where al-Qaeda and the Taliban are holed up, then he would not hesitate to order military strikes there. Senator McCain, seized of the delusional view that Pakistan is a great ally of ours, belittled Obama’s position as provoking an important country with which we are at peace. But you can never be at peace with a place that is allowing mass-murder attacks to be launched at you from its territory.
My hesitancy about Obama on Pakistan was rooted in the fact that I didn’t believe him. Leftists are always big on fighting the war we’re not in as an excuse for undermining the war we are in. I thought Obama was flexing his rhetorical muscles on Pakistan to blunt his derelictions on Iraq. I couldn’t be more pleasantly surprised to be wrong. As president, he has done what he said he would do in Pakistan, and he has gotten effective cooperation from the wily Pakistanis, which is no mean feat.
What of the lost intelligence-gathering opportunities? They’re a loss, but then again dead terrorists don’t recidivate, don’t rejoin the jihad, and don’t kill more innocent people. When the Bush administration killed thousands of jihadists — when our troops put a definitive end to Abu Musab al-Zarqawi, for example — I don’t recall anyone saying, “Gee, wouldn’t it have been better if we could have done interrogations instead?” I was worried that President Obama would shrink from the fight entirely. If he’s going to fight the war, but kill rather than capture, that’s fine by me.
But that said, we do come back to the matter of incentives and the opportunity Obama has to fix a problem of his side’s making.
If we were killing terrorists because our military strategists calculated that killing jihadists was the best way to break the enemy’s will, then that would be a good thing. If, on the other hand (and as the Washington Post suggests), we are killing them because our self-defeating judicializing of combatant detention and interrogation has made it counterproductive to capture enemy operatives, then that is very bad. But it is also eminently curable.
When Justice Thomas offered his Hellfire missile example, the lesson was a blunt and unavoidable one. The “rule of law” that Obama officials are fond of invoking includes the laws of war. Those laws, triggered by threats to the life of the republic, command what Justice Oliver Wendell Holmes Jr. described as “the substitution of executive process for judicial process.” The CIA doesn’t need a warrant to deprive an al-Qaeda chieftain of his right to life.
I don’t believe alien enemies have constitutional rights. They have whatever rights our political branches choose to give them, subject to our ability as a free people to demand that our elected officials give them less or more. We can trust ourselves to regulate that matter — we don’t need courts to do it.
But even if one concedes, for argument’s sake, that our alien enemies have some fundamental rights, war takes us very high up the scale of rights that combatants may be deprived of without judicial interference. If you may kill them, you have to be able freely to take the less drastic measures of capture, detention, and interrogation. You have to be able to do those things with as little judicial intrusion as is involved in killing. Otherwise, in the name of human rights, you have ensured that everyone will be killed.
This is common sense. That didn’t help President Bush, of course, because opposition to him was so deranged that it turned commonsense protective measures into political powder-kegs. President Obama has a much easier life on that score. Were he to propose a system for the long-term military detention and interrogation of alien enemy combatants — one with congressional oversight and little or (preferably) no judicial role — he would get overwhelming support in Congress.
Obama’s radical base would squawk, and, unfortunately, that’s usually reason enough to stop him from doing the right thing. But if he did it, it would markedly improve his standing among the American people, who’ve grown increasingly alarmed at his national-security weakness.
The president should listen to Justices Thomas and Holmes. I don’t think he will . . . but I didn’t think he’d be killing al-Qaeda in Pakistan, either.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).